Pennsylvania Railroad v. Warren Street Railway Co.

41 A. 331, 188 Pa. 74, 1898 Pa. LEXIS 577

Opinion

Opinion by

Mr. Justice Green,

In all our recent utterances respecting grade crossings of railroads, we have expressed ourselves with an increasing emphasis against their allowance, and'with a most earnest purpose to “prevent” them wherever it is “reasonably practicable to .avoid” them. We consider this to be our plain duty in order to conform with the express letter of the act of 1871, and to effectuate the prudential considerations and the manifest policy which underlie the legislation upon this very important subject. A recurrence to a few of our later decisions will be desirable in this connection to illustrate their application to the facts of the present case. In Perry Co. R. R. v. R. R., 150 Pa. 193, the Chief Justice delivering the opinion said: “We must consider the legislation bearing upon this subject as a whole, and the acts of 1849 and 1868, before referred to, as modified by the act of 1871. The latter act does not put the rights of the company desiring to cross the railroad of another on a level with the rights of that company, but manifestly declares them to be secondary. Two thoughts are clearly expressed in this statute, the one that no unnecessary injury shall be perpetrated on the road sought to be crossed; the other, that crossings at grade shall be prevented whenever they can reasonably be avoided: Pittsburg & Connellsville Railroad Co. v. The South Western Railway Co., 77 Pa. 173. In that case we held that the act of 1868 did not give a railroad corporation an arbitrary right to cross another railroad, regardless of the rights of the corporation injured and the safetj’- of the public; and that the intent of the act of 1871 is to discourage grade crossings involving danger to the public as well as injury to the company whose road is crossed. A decree was entered prohibiting a crossing at grade. Just here we will supplement the decision of that case by saying that the time for grade crossings in this state has passed. They ought not to be permitted except in case of imperious necessity. They admittedly involve great danger to life and property.”

In Penn. R. R. Co. v. Electric Railway Co., 152 Pa. 116, the present Chief Justice, referring to the act of 1871, and discussing its effect upon the act of 1889 which conferred the right to cross at grade, said: “ The manifest purpose of this (act of 1871, sec. 2) is not merely to discourage grade crossings because of their danger to the public as well as injury to the company whose road is crossed, but also to prevent them whenever hr the judgment of the court it is reasonably practicable to avoid such dangerous and injurious crossing. As an exercise of the police power of the state, the wisdom of the provision has become more manifest from year to year as railroads multiply.” After quoting from the opinion in the Perry County R. R. case above cited, Mr. Justice Stereett further said: “It is claimed by defendant however that the eighteenth section of the act of 1889, under which it is incorporated, expressly authorizes it ‘to cross at grade, diagonally or transversely, any railroad operated by steam or otherwise, now or hereafter built.’ If by the language thus employed the legislature intended not only to barter away the police power of the state in regard to such grade crossings, but also to limit the jurisdiction of courts of equity iu relation thereto, then indeed, the learned judge fitly characterized such legislation as ‘exceedingly vicious,’ but we cannot think any such construction as that should be given to see. 18 of the act (art. 16, sec. 3, const. ). It is a well recognized principle of legislation that grants of franchises are made and accepted in subordination to the police power of the state. This results from the inherent nature of that power. .... We are therefore warranted in concluding that a surrender of that power was neither effected nor intended to he made by the act under consideration. Nor do we think that the jurisdiction conferred by the second section of the act of 1871 was in any manner restricted or limited by the act of 1889. As we have seen, the latter is entitled ‘An act to provide for the incorporation and government of street railway companies in this commonwealth.’ This title conveys not the slightest intimation of any intention to interfere with the jurisdiction theretofore conferred on courts of equity relating to railroad crossings at grade.

“ The tenth section of the general railroad act of April 4,1868, provides that ‘railroad companies formed under the provisions of this act shall have the right to construct roads so as to cross at grade the track or tracks of any other railroad in this commonwealth.’ In Pittsburg, etc., R. R. Co. v. Railway, 77 Pa. 173, it was hold that the exercise of this right was subject to judicial control. It was there said, ‘The appellee was subjected to the operation of the act of June 19, 1871. Under the act of 1868, the place where and the manner in which one railroad might cross another at grade were undoubtedly subjected to review by a court of equity. . . . Moreover the evident intendment of the statute is to discourage crossings at grade. . . . Each succeeding year will increase the necessity for avoiding them. Their construction should now and henceforth he discouraged.’

“ We have no doubt electric railways are within the purview of the act of 1871. They are certainly within the mischief for which the second section provides a remedy.”

In both the foregoing cases, as well as in the cited case from 77 Pa. 173, the grade crossings had been allowed by the court below, and in all we reversed the judgments and refused the crossing. In the still more recent case of Scranton & Pittston Traction Co. v. Del. & Hud. Canal Co., 180 Pa. 636, the views expressed in the preceding eases were emphatically reaffirmed and applied. The court below had allowed the crossing, and this judgment was affirmed by a majority of the Superior Court; but we reversed the judgment and refused the crossing, although the facts as to the physical situation and the difficulty of avoiding a grade crossing were far more serious than they are in the case at bar. Our Brother Dean in an exhaustive opinion, both on the law and on the facts appearing in that case, held that the crossing should be refused, notwithstanding the very serious obstacles arising out of the physical situation. After stating the facts he says: “ This brings us at once to a consideration of the duty of courts under the second section of the act of 1871: ‘If in the judgment of such court it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade.’ So far as the possible maybe considered the practicable, there are very few points on the surface of the state where other than grade crossings are not practicable. What a century ago were deemed insurmountable obstacles to an under or over crossing are now treated as only engineering difficulties which skill and capital can generally overcome. • But the legislature has modified what may be deemed a strict definition of the word ‘practicable’ by prefixing the word ‘reasonably.’ This devolves upon the courts in every contention of this kind an ascertainment from the facts of the particular case .what is ‘ reasonable.’ In the first place we must assume, because the legislature in this enlightened age has impliedly so assumed, that it is unwise, if not reckless and barbarous, to unnecessarily subject the traveling public and the employees of carrying corporations, to the death, maiming and horrors of collisions which inevitably result from grade crossings. And if it is reasonably practicable to avoid a grade crossing, then the question as to what extent the risk of such a crossing may be reduced is immaterial, for the law assumes, and experience demonstrates, that extraordinary care by both parties using such crossing, aided by all the advances in science and mechanics, has only resulted in lessening the risk, not in abolishing it. In deciding, therefore, what is reasonable we are bound to keep in mind the consequences to be avoided. It is not as if the result of a collision were the injury to, or even the destruction of, property which, compared with rapid and cheap travel and transit, might perhaps be trivial, but it is the danger to the persons of the public which is to be avoided. Safety is the object in view, and, therefore, in determining what is reasonable we must balance expense and difficulty against loss of life and limb.” Referring to the facts as to the crossing in that case the opinion proceeds: “ There is no physical obstacle to the avoidance of a grade crossing. As to the cost of avoiding it where it is physically practicable, it is not clear from the act itself that the legislature intended this fact should he considered in determining what is reasonable. . . . But assuming the question of cost may properly enter into the question of reasonableness, it can have no weight here, for it is conceded that the additional expense of an overhead crossing would not be over six to eight thousand dollars, a sum not equal to the cost of one mile of additional track; an amount which balanced against the loss of a single limb to a passenger is of no weight at all.” The opinion then deals with the proposition that as the traction company could not build an overhead crossing without elevating it in front of the buildings of adjoining owners, and as it did not have the right of eminent domain it could not erect the crossing without the consent of the owners, and therefore it was practically impossible to build it at all. To this contention the opinion replies: “ The traction company in effect says, we have no power under our charter to construct a reasonably practicable overhead crossing as required by law, therefore, as to us, a crossing, except at grade, is impracticable. But the reasonably practicable is not to be determined by want of corporate power to invade tbe rights of the property owner. The construction of the crossing is what the statute expressly says shall be regulated by the courts, and this with a view to avoid danger, and to protect the' older franchise from injury by the younger one. The act of 1889 gives the right to cross at grade, but then we are met by the act of 1871 which says the court shall by its process prevent it, if an overhead crossing he reasonably practicable. This loaves only for the court the physical problem to be solved by the inference warranted from the character of the two roads, the business done upon them, the topography of the territory, and like facts. . . . We may say here that if the act of 1889 does not confer upon electric railway companies those full powers neces sary to their construction and corporate prosperity, the legislature is the body to -which application should be made for more extensive grants. And we may further say that, after ample time for the most thorough consideration, we are determined to unflinchingly adhere to the rule announced in Perry County Railroad v. Newport, etc., Railroad, 150 Pa. 19B, Penna. R. Co. v. Braddock Electric Ry. Co., 152 Pa. 116, and subsequent cases,”

The writer has made the foregoing liberal citations from the cases named because they practically determine every contention made in the present case. We have here no physical obstacle to the construction of the overhead crossing. It is entirely practicable. The learned court below considered that it would be an obstruction to the travel in the street, andthere'fore a serious inconvenience, and also that it would be very unsightly in appearance. As the street is forty feet wide, and the trestle work but sixteen, there would be twenty-four feet left in the clear for the street travel, and as the whole distance to be occupied by the structure would be only 700 feet in length along the street, we do not think this would be so serious an inconvenience to the street travel as to destroy the reasonable practicability of the overhead crossing. As to the unsightliness of the structure it cannot be considered as of any consequence when weighed against all the dangers of a grade crossing. As the cost would be only $4,000 it goes for nothing as against the statutory prohibition. As to the damages which might have to be paid to private owners, they are of too uncertain character and amount to constitute, in advance of any ascertainment, a reason for granting the grade, as against the overhead, crossing. Moreover we declined in the last cited case to give- any weight to that contention. The consideration of the probabilities or the improbabilities of collisions, by reason of extraordinay precautions to be prescribed in the decree, is not an element in the determination of the question. The one test imposed by the statute is the reasonable practicability of the overhead crossing. If that is established other considerations become unimportant. We desire to announce again that we firmly adhere to the policy, and to the rules and principles expressed in the decisions to which we have referred.

The motion to dismiss the appeal is without merit and is denied. The assignments of error are all sustained.

The decree of the court below is reversed at the cost of the appellee and it is now ordered that the Warren Street Railway Company be perpetually enjoined against crossing the tracks of the Pennsylvania Railroad Company at grade.